New Jersey Land Use Law

No less remarkable is the Highlands Council’s reasoning for its decree – the Highlands Council now states that there are no areas designated for growth in the Highlands Regional Master Plan (RMP). From a purely legal perspective, it is highly questionable whether the Highlands Council has the legal authority to decide where legislation does, or does not, apply. A summary of the Permit Extension Act, and the “reasoning” expressed by the Highlands Council for its position, are as follows.

The Permit Extension Act

The Permit Extension Act (PEA) became effective when signed by Governor Corzine on September 6, 2008. The PEA extends a wide variety of permits and approvals, including many state-issued permits and site plan and subdivision approvals issued by local planning boards and zoning boards. Essentially, all State, county, regional and municipal permits and approvals are extended (but not federal permits) unless excluded by specific language in the act.

The PEA applies to extend (or “toll”) such permits that otherwise lapsed on or after January 1, 2007, and extends them through at least July 1, 2010 (and possibly up to six months thereafter as well, depending on application of the tolling language of the bill).

Permits are not extended per the PEA if the lands subject to the permits are located in “environmentally sensitive areas” as defined in the PEA. “Environmentally sensitive areas” are defined in the PEA to include lands within State Plan Planning Areas 4B and 5 as of the effective date of the PEA, “critical environmental sites,” the Highlands Region, except for lands designated for growth in the Highlands RMP, and non-growth Pinelands areas. Other significant categories of permits not extended by the PEA include federal permits, certifications or approvals or water quality management plan approvals issued pursuant to the Water Quality Planning Act, center designations per CAFRA or the State Planning Act, certain DOT permits, and Flood Hazard Area Control Act permits (unless work has commenced).

The PEA in the Highlands Region

As noted above, the Legislature decided, through the PEA, that permits would not be extended in “environmentally sensitive areas,” with such areas defined to include the Highlands Region, except for lands designated for growth in the Highlands RMP. Put another way, the Legislature decided that permits and approvals within the Highlands Region would be extended if the affected lands are lands designated for growth within the RMP.

The RMP and its mapping lead readers to conclude that, at least on their face, there are some areas designated for growth within the Highlands Region. Indeed, the legality of the RMP itself is highly questionable, for a number of reasons, if it lacks any areas designated for growth, even within the Highlands Planning Area. Nevertheless, the Highlands Council “provided notice” in the October 6, 2008 New Jersey Register that the PEA does not apply anywhere within the 88 municipalities comprising the Highlands Region because the RMP does not contain any areas designated for growth.

The October 6 notice further states that the PEA will not apply in the Highlands Region “until such time as the Highlands Council designates growth areas in the” RMP. The notice further points to a “policy” in the RMP which states that “provisions and standards relating to regional growth activities which increase the intensity of development shall be discretionary for conforming municipalities and counties.” Thus, it is apparently envisioned that municipalities and counties will seek “conformance” from the Highlands Council as to their Planning Area lands, and that the PEA may therefore apply to some unspecified Highlands Region lands if the Highlands Council should “at some future date, designate growth areas” in the RMP during the extension period of the PEA.

The October 6 notice also seems to rely, in defense of the Highlands Council’s decree concerning the PEA, on the Governor’s “ordering of additional protections” within the Highlands Region through his Executive Order 114.

It is not entirely clear how municipalities seeking to “conform” their ordinances and master plan to the RMP’s Planning Area guidelines so as to achieve higher density development could obtain such conformance when, according to the Highlands Council, the RMP contains no areas designated for growth. Rather, it would appear that, by definition, proposals to allow higher density growth would not conform to an RMP that has no growth areas. If that is the case, the PEA will never apply as to any Highlands Region lands, given the position of the Highlands Council as expressed in its October 6 notice.

The Bottom Line

It is typically up to the courts to decide what legislation means, and whether it applies to various factual scenarios. Through the October 6 notice, the Highlands Council has taken it upon itself to “rule” that the PEA simply does not apply to the 88 towns within the Highlands Region because of the way it has chosen to characterize the RMP. Even as to mapped Existing Community Zones within the Highlands Planning Area, the Highlands Council has advised, through its October 6 notice, that lands within those zones are not “designated for growth” and that the PEA does not apply therein. The Highlands Council’s position means, for example, that Morristown and Dover are not areas designated for growth in the RMP, and that the PEA therefore does not apply to permits and approvals issued in those towns, or in any other Highlands towns.

The net effect of the October 6 notice will be to deprive many properties of the benefits of the PEA, even though the Legislature clearly envisioned that there would be areas designated for growth within the RMP that would benefit by the permit extension provisions of the PEA. It seems exceedingly unlikely that the plan conformance process, or any other future regulatory developments, will result in such permits and approvals being “resuscitated.” The plan conformance process is not obligatory in the Planning Area per the Highlands Act, and will likely take years even if pursued by given municipalities, with the end result of the plan conformance process being uncertain at best. Litigation contesting the terms of the October 6 notice may be the only alternative if permits and approvals are to be preserved. Among the types of development to be negatively affected by the October 6 notice may be developments approved to assist municipalities in meeting their Mount Laurel obligations.

Finally, while this edition of Dimensions, and this article, focus only on Highlands-related issues, readers should be advised that the October 6, 2008 New Jersey Register also contains a notice concerning the effect of the PEA within the Pinelands Area.